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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Special Procedures: Human Rights Council

Mónica Pinto

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Disappearances — Individual complaint procedure — International organizations, procedure — Fact-finding and inquiry

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

Human rights are one of the goals of the United Nations Charter (‘UN Charter’). They have been one of the main pillars of the political and legal order since the Second World War. The UN Charter elaborates on their definition—human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion—and creates the first political organ charged with debating them and with setting human rights standards, the United Nations Commission on Human Rights (‘UNCHR’ or ‘Commission’), as provided for in Article 68 UN Charter. In 2006, the Commission was replaced by the United Nations Human Rights Council (‘UN HRCouncil’, ‘HRC’, or ‘Council’) (see United Nations Commission on Human Rights/United Nations Human Rights Council).

The Commission was established in 1946 as a subsidiary intergovernmental body to the Economic and Social Council (United Nations, Economic and Social Council (ECOSOC)) and immediately became the drafting committee of a human rights instrument. That process kept the Commission busy until 10 December 1948 when the Universal Declaration of Human Rights (1948) was adopted by the United Nations General Assembly (‘UNGA’; United Nations, General Assembly) in Paris.

The UN Charter did not vest the Commission with any special capacity to deal with communications, nor did the Statute of the Commission. However, during the first years of the UNCHR, complaints about human rights violations in many parts of the world started to reach the United Nations (‘UN’) headquarters (Escobar Hernández, 1988, I, 183). The UNCHR forwarded each communication to the government concerned but no decision was taken.

It took a long time for the Commission to react to its lack of powers and to decide to act. To address the situation, the Commission appointed independent human rights experts with mandates to report and advise on human rights from a thematic approach or with a country-specific perspective. Today, these Special Procedures are a crucial piece of the UN human rights machinery.

B.  Historical Account

At its very first session in 1947, the UNCHR acknowledged this situation by adopting the following statement: ‘The Commission recognizes that it has no power to take any action in regard to any complaints concerning human rights.’ Accordingly, later the same year, through its Resolution 75 (V), ECOSOC also approved the statement that the Commission ‘recognized that it has no power to take any action in regard to any complaints concerning human rights’ (UN ECOSOC Res 75 (V) [5 August 1947]).

On 30 July 1959, ECOSOC Resolution 728F (XXVIII) confirmed the previous statement of the UNCHR but also requested the Secretary-General ‘to compile and distribute to members of the Commission on Human Rights before each session a non-confidential list containing a brief indication of the substance of each communication, however addressed, which deals with the principles involved in the promotion of universal respect for, and observance of, human rights and to divulge the identity of the authors of such communications unless they indicate that they wish their names to remain confidential’ (UN ECOSOC Res 728F (XXVIII) [30 July 1959]). It also requested the Secretary-General ‘to compile before each session of the Commission a confidential list containing a brief indication of the substance of other communications concerning human rights, however addressed, and to furnish this list to members of the Commission, in private meeting, without divulging the identity of the authors of communications except in cases where the authors state they have already divulged or intend to divulge their names or that they have no objection to their names being divulged’. The resolution set out a sort of adversarial procedure but without requiring States to furnish an answer.

The dynamic was paradoxical, because even when the communications were handled and studied by the Secretariat, and were forwarded to the concerned States, it was agreed that no decisions would be adopted on the matter.

In the 1960s, the newly independent states that emerged from the decolonization process increased the membership of the UN and brought with them different cultures, civilizations—in other words, a substantial heterogeneity—and their common concern about South Africa’s practice of Apartheid. This position paved the way for the establishment of an Ad Hoc Group of Experts on Southern Africa.

On 6 June 1967, ECOSOC Resolution 1235 (XLII) welcomed the decision of the UNCHR to annually consider the item entitled ‘Question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid, in all countries, with particular reference to colonial and other dependent countries and territories’ (UN ECOSOC Res 1235 (XLII) [6 June 1967]), which is today the HRC’s agenda item 4 regarding human rights situations that require the Council’s attention. Resolution 1235 (XLII) authorized the UNCHR to examine the information relevant to that end and decided that it could ‘make a thorough study of situations which reveal[ed] a consistent pattern of violations of human rights, as exemplified by the policy of apartheid as practiced in the Republic of South Africa and in the Territory of South West Africa under the direct responsibility of the United Nations and now illegally occupied by the Government of the Republic of South Africa, and racial discrimination as practiced notably in Southern Rhodesia, and report, with recommendations therein, to the [ECOSOC]’ (Resolution 1235 (XLII) para 3).

10  This was the starting point of the ‘situations’ dealt with by the Commission, that is the consideration of the whole picture of human rights violations, through the accumulation of cases revealing common patterns, but avoiding a decision in each individual case.

11  In October 1966, UNGA Resolution 2144 A (XXI) invited ‘[ECOSOC] and [the UNCHR’ to give urgent consideration to ways and means of improving the capacity of the [UN (meaning the CHR)] to put a stop to violations of human rights wherever they [might] occur’ (UNGA Res 2144 A (XXI) [26 October 1966]). This was a strong signal of an imminent change in the policy in force at the time.

12  On the grounds of this resolution, the UNCHR set up the Ad Hoc Working Group of Experts on South Africa and appointed the Special Rapporteur on Apartheid (Special Rapporteurs of Human Rights Bodies [UNCHR Res 2 (XXIII) [6 March 1967]; UNCHR Res 7 (XXIII) [16 March 1967]).

13  The adoption of a general procedure dealing with complaints of mass violations of human rights was not politically without cost. From its implementation, it was decided that the determination of the situations dealt with by the Special Procedures was essentially a political question. This decision explains why certain situations of serious human rights violations do not reach the Commission’s agenda.

14  The foundation of Special Procedures lies in the law of the UN Charter. In Chapter IX, dealing with international economic and social cooperation, Article 55 provides that the UN shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. In addition, Article 56 embodies the Member States’ pledges to take joint and separate action in cooperation with the Organization to reach those goals. A dynamic and integrative interpretation of both provisions shows that this genuine creation is a step towards achieving one of the purposes of the organization: the realization of cooperation by promoting and encouraging respect for human rights and fundamental freedoms without discrimination, as enunciated in Article 1 (3) UN Charter. This is in fact the same teleological criterion used by the International Court of Justice (ICJ) to state reasons for its views in Certain Expenses of the United Nations (Advisory Opinion), 1962 (at 179).

15  Furthermore, the adoption of the procedure also evidences the evolving nature of the Universal Declaration of Human Rights, which is the substantive law enunciating the primary rule whose breach leads to a complaint. It should be noted that in the same year, the ICJ issued its well-known dictum in the Barcelona Traction Case on the erga omnes nature of some obligations deriving from general international law (Obligations erga omnes), ‘the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination’, presumably pointing to those rights embodied in the Universal Declaration of Human Rights (Barcelona Traction, paras 33–34).

16  In 1967, the United Nations Sub-Commission on the Promotion and Protection of Human Rights (United Nations, Sub-Commission on the Promotion and Protection of Human Rights; ‘Sub-Commission’), the expert subsidiary body of the UNCHR, recommended the Commission investigate the human rights situations in Southern Africa, Greece, and Haiti. However, the UNCHR took no action (Carey, 1972, 107–8).

17  In 1970, ECOSOC adopted Resolution 1503 (XLVIII), which empowered the Commission to examine those situations of systematic violation of human rights and fundamental freedoms (UN ECOSOC Res 1503 (XLVIII) [27 May 1970]). A very complex procedure of multiple steps was set up. A working group established by the Sub-commission made an initial evaluation of the communications received by the Secretariat and forwarded it to the plenary. The Sub-commission itself considered the file and then forwarded it to the Group of Five of the UNCHR, that is a group of five delegates, one of each of the five political regions acknowledged by the UN, which established the final list to be considered by the Commission. A final step could eventually follow when the UNCHR decided to bring a communication to the attention of the ECOSOC. This long procedure allowed the organs of the international community to consider all communications, together with replies of governments, which appeared to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms, received by the Secretary-General under ECOSOC Resolution 728F (XXVIII) (30 July 1959).

18  The first phase in the treatment of those communications was confidential. To reach the second stage, meaning the ECOSOC, which was public, States had to vote. However, they lacked experience in voting on these new issues and they usually applied the same standards used in other fields of diplomatic negotiation, historical alliances, neighbourhood relationships, and others. As an illustration, when the Group of Five of the UNCHR had to consider the communications against Argentina in 1977, ‘the Soviet, Pakistani, and Nicaraguan delegates all cast their vote in favour of the Junta’ (Guest, 1990, 118). This practice neutralized the effect of the Resolution 1503 (XLVIII) procedure (‘1503 procedure’), whose lacunae began to be largely perceived. As a matter of fact, the 1503 procedure is not considered to be part of the Special Procedures because it is not an expert mechanism. In fact, the Special Procedures were conceived to supersede the deficits of the 1503 procedure.

19  The military coup d’etat that put an end to the government of President Salvador Allende in Chile, on 11 September 1973, provided the opportunity for a change. In 1975, by means of UNCHR Resolution 8 (XXXI), a Working Group of independent experts was appointed with a mandate to investigate human rights violations in that country (UNCHR Res 8 (XXXI) [27 February 1975]). As the situation in Chile evolved, this special procedure adopted different formats, and a Special Rapporteur was appointed in 1978. Ultimately, a Special Procedure remained in force until President took office in March 1990.

20  The mandate in Chile superseded the obstacles shown by the enforcement of the 1503 procedure. It was conceived as a public mechanism with an obligation to submit reports to the Commission, and even to the UNGA through its Third Committee. This mandate was the first example of Special Procedures of the UN Commission on Human Rights by country or geographical approach.

21  Another coup d’etat, this time in Argentina, provided the second opportunity for this law-making process within the Commission. The Argentine military had learned all the lessons from the Chilean experience and they blocked everything that could lead to a condemnation. There was no way to go public through the 1503 procedure. Nor was it possible to appoint a Special Rapporteur because the Argentine military delegates placed obstacles to the voting (Guest, 1990, 180).

22  Finally, in 1980, UNCHR Resolution 20 (XXXVI) established the Working Group on Enforced or Involuntary Disappearances with a view to acting as a bridge, ie as a communication device, between the families of the victims and the governments concerned on a worldwide scale. Its main task was to transmit to the competent authorities the claims received and to ask for information. Accordingly, the files with the Working Group remained open until the situation was defined, either because the disappeared person appeared or because he or she was declared dead.

23  This Working Group was the first thematic mandate created under the Commission’s Special Procedures, the first dealing with a phenomenon that caused great violations of human rights. Soon after that, Special Rapporteurs were appointed relating to the question of extrajudicial or summary killings, torture, violence against women, and others. It has been said that the development of thematic mandates is a remarkably flexible approach to implementing international human rights norms (Weissbrodt, 1986, 685).

24  In 1986, Special Procedures were extended to fundamental freedoms (freedom of speech, of religion, etc) and, early in the 1990s, they were further expanded making room for hybrid mechanisms, a group in between the Special Procedures and the treaty bodies established by the human rights treaties. The Working Group on Arbitrary Detention, created through the UNCHR’s Resolution 1991/42, was tasked with the examination of arbitrary detentions (Detention, Arbitrary) all over the world, the handling of individual communications on specific cases, and the issuance of decisions on such complaints on the grounds of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (1966) (UNCHR Res 1991/42 [5 March 1991]). Its working methods are a mix of those in force in the majority of the Special Procedures and in the petition system managed by the treaty bodies.

25  By the end of the century, Special Procedures also extended to cover economic, social, and cultural rights. The follow-up to the 2001 Durban Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, as well as increased concern regarding trafficked persons, displaced persons, and environment, among other issues, led to the establishment of new working groups.

26  As Special Procedures increased in number and variety, the 1503 procedure reduced its scope. However, it remained as a residual mechanism. Ultimately, in 2006, when the HRC replaced the UNCHR, a new complaints policy was adopted to replace the 1503 procedure.

C.  Mandate Holders

27  Mandate holders—Special Rapporteurs and Independent Experts acting on their own or as members of a working group—are appointed in their personal capacity and act with independence. At the very beginning of the Special Procedures, they were appointed by the president of the UNCHR or by its Bureau, usually upon the proposal of names by the Centre for Human Rights.

28  With the new century, applications began to be received at a portal of the Special Procedures specially designed for that purpose. Later on, nominations by governments, regional groups, intergovernmental organizations, non-governmental organizations (‘NGOs’; Human Rights, Role of Non-Governmental Organizations), and individuals were allowed on the grounds of UN HRCouncil Resolution 5/1, adopted in 2006, which provided for the institution-building of the Council (UN HRCouncil Res 5/1 [18 June 2007]). Shortlisted candidates are interviewed by a Consultative Group for the selection of mandate holders, composed of five delegates corresponding to the five regional groups within the UN. The report of the Consultative Group, providing information on the development of the process to fill the vacancies and the shortlisted candidates for each mandate, is public and is available on the web. The president of the HRC then makes his/her choices, normally in consultation with the heads of the regional groups, and also publishes a letter to all delegates proposing the candidates who will be appointed at the next session of the Council (OHCHR, ‘Manual of Operations of the Special Procedures of the Human Rights Council’, 2008, 8).

29  In June 2007, the HRC adopted the Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council (UN HRCouncil Res 5/2 [18 June 2007]; ‘Code of Conduct’). It sets out explicit general principles of conduct and the specific status of mandate holders, as well as sources of information and questions relating to methods of work.

30  Special Rapporteurs and Experts are not UN officials. They do not receive a salary or professional fees, although their expenses are defrayed by the UN (Manual of Operations of the Special Procedures of the Human Rights Council, 2008, 10). Most of them keep their jobs and generally are not based in Geneva. While on duty, the mandate holder, his or her assistants, if any, and those meeting with him or her are covered by international immunity. Because of the threats suffered by one of the mandate holders in the 1990s, an advisory opinion was requested to the ICJ, which found that Article VI, Section 22 Convention on the Privileges and Immunities of the United Nations was applicable to mandate holders during and after their service (Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999).

31  In fact, the ICJ had previously rendered an advisory opinion relating to the situation of a member of the Sub-commission who had been harassed by his State of nationality and was unable to perform his tasks. At that time, the ICJ found that:

the purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them ‘such privileges and immunities as are necessary for the independent exercise of their functions’. The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission (Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, 1989, para 47).

At present, this is stipulated in Article 4 (2) Code of Conduct.

32  Also as a follow-up to the Vienna World Conference on Human Rights (1993), on an annual basis, since 1994, Special Rapporteurs/representatives, Experts, and chairpersons of working groups of the Special Procedures and the advisory services program of the Commission meet in Geneva. The Vienna Declaration and Programme of Action, in its section entitled ‘Implementation and monitoring methods’, underlines the importance of preserving and strengthening the system of Special Procedures and specifies that the procedures and mechanisms should be enabled to harmonize and rationalize their work through periodic meetings (UN World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’, 1993, para 95).

33  The meeting enables the exchange of views, information, and proposals to enhance the procedures. In 2005, the meeting decided to establish a Coordinating Committee composed of five members and ex officio the immediate past president. It reports to the UNCHR and HRC annually.

34  At their sixth meeting, in 1999, Special Procedures adopted a Manual of Operations of the Special Procedures of the Human Rights Council, initially drafted by mandate holders and revised in 2008, by the 15th Meeting, in the light of comments by States and NGOs.

35  Initially, Special Procedures worked with the assistance of the Centre for Human Rights managed by the Assistant Secretary-General of the UN based in Geneva. In 1993, after the Vienna World Conference on Human Rights, through UNGA Resolution 48/141, the position of United Nations High Commissioner for Human Rights was created as the main post in the Organization for the coordination of all human rights activities (Human Rights, United Nations High Commissioner for (UNHCHR)). The former Centre for Human Rights was replaced by the Office of the High Commissioner for Human Rights (‘OHCHR’) and a new format was adopted for the working of the mechanisms.

36  In 2002, the ‘Guiding principles regarding the working relations between special procedures mandate-holders and OHCHR staff’ were adopted to determine the division of work and responsibilities between the OHCHR and mandate holders. The Special Procedures division in the OHCHR provides support to all thematic mandates, while the Field Operations and Technical Cooperation Division supports the work of country Special Procedures and links the work of all mandate holders to country engagement strategies of OHCHR (Manual of Operations of the Special Procedures of the Human Rights Council, 2008, paras 20–23).

D.  Competence

37  Special Procedures are crafted on the needs of the international community at a given moment. An assessment of the practice followed both by the UNCHR and the HRC shows that a Special Procedure’s competence ratione materiae is defined in the resolution that creates a mandate, which also establishes the competence ratione temporis and the period over which the mandate will take place. Normally, a mandate is renewed until the time when the HRC decides to terminate it because the goals have been reached or the situation has been taken over by another mechanism.

38  Mandates’ approaches may vary. The practice followed by both the UNCHR and the HRC shows that Special Procedures usually follow either a country or a thematic approach.

1.  Country Mandates

39  Country mandates require fact-finding, detailed reports, conclusions, and recommendations. The same Special Rapporteur takes care of the follow up of the previous report and works for the new one. Even though mandate holders may change, the mandate keeps practically the same features. They cover the whole situation of human rights in a given country.

40  In 1993, the UNCHR appointed a Special Rapporteur on the Situation of human rights in Palestinian Occupied Territories since 1967, and its Resolution 1993/2 A defined the mandate as follows: ‘to investigate Israel’s violations of the principles and bases of international law, international humanitarian law and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, in the Palestinian territories occupied by Israel since 1967; to receive communications, to hear witnesses, and to use such modalities of procedure as he may deem necessary for his mandate; to report, with his conclusions and recommendations, to the Commission at its future sessions, until the end of the Israeli occupation of those territories’ (UNCHR Res 1993/2 A [19 February 1993]).

41  Following a Special Session, on 2 December 2011, through its Resolution S-18/1, the HRC decided ‘to establish the mandate of Special Rapporteur on the situation of human rights in the Syrian Arab Republic once the mandate of the commission of inquiry ends, to monitor the situation of human rights in the Syrian Arab Republic as well as the implementation of the recommendations made by the commission of inquiry addressed to the authorities of the Syrian Arab Republic and of the resolutions of the Human Rights Council on the situation of human rights in the Syrian Arab Republic, and calls upon the Government of the Syrian Arab Republic to cooperate fully with the Special Rapporteur. The Special Rapporteur was requested to report both to the HRC and to UNGA and to present oral updates to each session of the Council under agenda item 4’ (UN HRCouncil Res S-18/1 [2 December 2011]).

42  The mandate on Belarus was created by HRC Resolution 20/13, under agenda item 4 regarding Human Rights situations that require the Council’s attention: ‘to monitor the situation of human rights in Belarus and to make recommendations for its improvement; to help to implement the recommendations contained in the report of the High Commissioner; to assist the Government of Belarus in fulfilling its human rights obligations; to offer support and advice to civil society; to seek, receive, examine and act on information from all relevant stakeholders pertaining to the situation of human rights in Belarus; and to report annually to the Human Rights Council and to the General Assembly in accordance with their respective programmes of work’ (UN HRCouncil Res 20/13 [5 July 2012]).

43  The language of the Council may look somewhat cryptic as in UN HRCouncil Resolution 20/20 when it decides ‘to appoint a special rapporteur on the situation of human rights in Eritrea for a period of one year, who will submit a report to the Human Rights Council at its twenty-third session’ (UN HRCouncil Res 20/20 [6 July 2012]). However, the same resolution urges the government to cease some practices and also to fully cooperate in implementing others, all of which are within the scope of the Special Procedure’s mandate.

44  On 27 September 2013, under agenda item 10 regarding Advisory Services and Technical Assistance, through its UN HRCouncil Resolution 24/34, the Council ‘decides to appoint an Independent Expert, for a period of one year, to monitor the situation of human rights in the Central Africa Republic [sic], to make recommendations concerning technical assistance and capacity-building in the field of human rights’ (UN HRCouncil Res 24/34 [27 September 2013]).

2.  Thematic Mandates

45  Thematic mandates cover a phenomenon related to serious violations of human rights—such as torture, extrajudicial killings, enforced disappearances, arbitrary detention, and others—or they deal with specific human rights and fundamental freedoms on a worldwide scale, irrespective of whether a particular government is a party to any of the relevant human rights treaties. As with the country Special Procedures, their competence ratione materiae depends on their theme and their competence ratione temporis is also defined by the Commission or the Council in the resolution that provides for their creation. These mandates require Special Rapporteurs, Independent Experts, or Working Groups to take the measures needed to monitor and respond quickly to allegations of human rights violations against individuals or groups, either globally or in a specific country or territory, and to report on their activities (Manual of Operations of the Special Procedures of the Human Rights Council, B.4).

46  The great majority of the thematic procedures entrust mandate holders to investigate human rights violations that fall within their scope, to conduct field visits, to address communications to concerned governments, to provide early warning on specific situations, to advocate on behalf of victims, to support the provision of advisory services, technical assistance, capacity-building and international cooperation, and to promote the progressive development of international human rights law in that field (UNCHR Res 1991/42 [5 March 1991]; UNCHR Res 2002/68 [25 April 2002]; UN HRCouncil Res 28/6 [26 March 2015]).

47  Resolution 20 (XXVI) of the UNCHR established the first thematic mandate, the Working Group on Enforced or Involuntary Disappearances, ‘to examine questions relevant to enforced or involuntary disappearances, to seek and receive information from governments, intergovernmental organizations, humanitarian organizations and other reliable sources and to bear in mind the need to be able to respond effectively to information that comes before it and to carry out its work with discretion’.

E.  Applicable Law

48  Legal claims in terms of human rights are checked against States’ obligations in the relevant area. Actually, these procedures point to internationally wrongful acts attributable to States and, thus assess States’ international responsibility (UN ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’, 2001).

49  The legal rules invoked in each case greatly depend on the extent of the obligations of a given State. The bottom layer is provided by the Universal Declaration of Human Rights, adopted by the UNGA on 10 December 1948, which supported the complaints procedure under ECOSOC Resolution 1503 (XLVIII) in 1970 (ECOSOC Res 1503 (XLVIII) [27 May 1970]). Additionally, there are other applicable rules: all human rights treaties binding on the State concerned, applicable soft law as produced by declarations and resolutions adopted at the universal level, and, possibly, regional rules when they provide an enhanced level of respect in the light of the pro persona principle.

F.  Working Methods

1.  Country Visits—Fact-finding

50  Both country and thematic special procedures mandate holders can conduct country visits. Fact-finding is considered to be the best method for assessing the situation of human rights. The Terms of Reference for country visits by mandate holders to States and territories—adopted by Special Procedures in 1998 and updated in 2016—are intended to guide governments in the conduct of the visit (UNHCR ‘Terms of Reference for Fact-finding Missions by Special Rapporteurs/Representatives of the Commission on Human Rights’ [1997]).

51  The State concerned is obliged to consent to the visit and grant certain facilities, namely freedom of movement, visits to all detention centres, prisons, and other centres where people are in custody, interviews with authorities, and private interviews with victims, their families, NGOs, non-organized civil society, mass media, and institutions. The State should also ensure that the people that meet the Expert will not be harassed as a consequence of the meeting.

52  As of 16 November 2018, 118 UN Member States and one non-Member Observer State, Palestine, have issued standing invitations to the Special Procedures of the HRC. In these cases, only the dates and the particularities of the visit have to be agreed with the given country. In any case, regarding those countries which have not issued standing invitations, the country visit has to be negotiated and in many cases the mission is accepted. When this is not the case, the mandate holder is obliged to meet victims and other stakeholders in a third country.

53  Country visits normally require preparation in order to be effective. An official agenda is set up in collaboration with the government of the visited State for the Special Rapporteur to meet with high level officials, especially those charged with his or her subject. A private agenda is built up for the mandate holder to have the opportunity of meeting with civil society leaders, organizations, and ordinary citizens. Before leaving the country, an advance copy of conclusions and recommendations is made public after the debriefing with the government.

54  Fact-finding provides first-hand information that has to be checked against all other information that the Expert obtains through all reliable sources. Such information has to be analysed in the light of the international law of human rights in force in the country. A report on the visit is drafted by the mandate holder and submitted to the HRC together with the ordinary report corresponding to the relevant year. The great majority of the reports are also submitted to the General Assembly through the Third Committee.

55  NGOs play a very important role in these mechanisms. They provide information and assistance, help in meeting the victims. Often, meeting with the experts during a visit means protection for them.

2.  Communications

56  Both thematic and country mandates deal with communications lodged by individuals, human rights NGOs, or national institutions complaining about violations of human rights that fall within the mandate and the mandate holder can address those issues with governments. The decision to act in a particular case depends on each mandate holder and on the terms of the given mandate and also on the reliability of the source and the details provided. According to the Code of Conduct, those communications should provide a factual description of the alleged violations of human rights, should not be manifestly unfounded or politically motivated and the language should not be abusive (Art 9 Code of Conduct).

57  When there is insufficient time for an ordinary procedure of communications, Special Procedures may resort to Urgent Appeals, namely, to address the government concerned so as to request it to provide international protection to a given person in order to avoid irreparable damage. All Special Procedures make use of Urgent Appeals (Art. 10 Code of Conduct).

58  Communications are not restricted to individual cases; they can address general situations where systematic patterns of human rights violations (Gross and Systematic Human Rights Violations) are practiced.

59  This system is more flexible than the one managed by treaty bodies. Here there is no requirement of exhaustion of internal remedies or other requirements as in the treaty system.

60  In 2011, Special Procedures started the practice of submitting a joint report on communications to each session of the HRC. They also act jointly in some cases, strengthening the importance of the case and, thus, the pressure on the government.

G.  The Reporting System

61  All Special Procedures require that reports are submitted to the Human Rights Council and, some, to the General Assembly. In 2017, 5 out of 8 Country mandates and 39 out of 44 thematic mandates reported to UNGA.

62  In thematic mandates, Special Rapporteurs are required to produce two different kinds of reports, namely a report on the situation of the given subject all over the world together with the necessary addenda covering their field visits and a second one, normally submitted to the Third Committee of the General Assembly, dealing with a special aspect of the law relating to the theme.

63  Before the reports are published, they are sent to the country concerned, which is invited to submit its views on it, which will also be published. During the session of the HRC, Special Rapporteurs are invited to present their reports and an inter-active dialogue follows. The first to be given the floor is the State concerned, others follow, and the Special Rapporteur has the possibility of addressing the issues raised during the session.

H.  Follow-up

64  Special Procedures have to follow up the governments’ reactions to the communications they handle, the visits they conduct, and the expert consultations they hold. Some mandates usually lead to follow-up visits but this depends very much on the availability of additional resources, because the ordinary budget provides for funding no more than two visits per year for each mandate. In the great majority of cases, follow-up is implemented through a written exchange of views.

I.  Relationship with Other Mechanisms

65  Special Procedures normally brief treaty bodies and vice-versa so that there is cross-fertilization among them. The same holds true for the activities of the OHCHR. In fact, the special website organized with a view to storing all available information on States regarding the Universal Periodical Review (<https://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx> [accessed 8 April 2019]) puts together statements and views by Special Rapporteurs and human rights treaty bodies’ assessments (Human Rights, Treaty Bodies) as well as periodical reports submitted by States, reports by the Secretary General, and other UN bodies’ and regional human rights systems’ contributions.

J.  Overall Assessment

66  The ways and means of action of Special Procedures are different from those applicable by treaty bodies. Special Procedures are deemed to exert open pressure on governments through public opinion. They rely on technical elements. Special Rapporteurs or Independent Experts have to draw a picture of the human rights situation in a given country on the grounds of the analysis of objective data checked in the light of human rights commitments. The reports are public and they have impact well beyond the HRC. They provide an assessment of the human rights situation in a given country or of a given human right all over the world by an independent evaluator and at the same time they get the approval of the community of States. They stress hidden situations and empower victims and local organizations to act. They suggest best practices and new paths to be explored. Governments feel under pressure to react positively to Special Procedures recommendations even when they may completely disagree with their evaluation. Sometimes Special Procedures succeed in saving lives and in improving situations.

Cited Bibliography

  • J Carey, ‘Progress in Human Rights at the United Nations’ (1972) 66 AJIL, 107–9.

  • C Escobar Hernández, La Comisión de derechos humanos de las Naciones Unidas y la violación de derechos humanos y libertades fundamentales: Estudio de los Procedimientos Públicos Especiales (Editorial de la Universidad Complutense de Madrid Madrid 1988).

  • I Guest, Behind the Disappearances. Argentina’s Dirty War Against Human Rights and the United Nations (University of Pennsylvania Press Philadelphia 1990)

  • D Weissbrodt, ‘The Three “Theme” Special Rapporteurs of the UN Commission on Human Rights’ (1986) 80 AJIL 685–90.

Further Bibliography

  • PHF Bekker, ‘Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights’ (1999) 93 AJIL 913–23.

  • M Limon & H Power, History of the United Nations Special Procedures Mechanism. Origins, Evolution and Reform (Universal Rights Group Geneva September 2014), <https://www.universal-rights.org/wp-content/uploads/2015/02/URG_HUNSP_28.01.2015_spread.pdf> (accessed 8 April 2019).

  • T Piccone, Catalysts for Change. How the UN’s Independent Experts Promote Human Rights (Brookings Institution Press Washington DC 2012).

Cited Documents